What if there are two versions of a will and the newer one isn’t notarized—which one do I use? – South Carolina

Short Answer

In South Carolina, the later will usually controls if it was validly signed and witnessed, even if it was not notarized. Notarization makes a will easier to prove, but it is not the basic requirement for a valid South Carolina will. If the newer will was not properly witnessed, or if the original cannot be found and the will is contested, the Probate Court may need to decide whether the older will, the newer will, or no will controls.

Understanding the Problem

The issue is whether a spouse can ask a South Carolina Probate Court to use a later, unnotarized will that names the spouse as personal representative when an older notarized will names a relative. The key questions are domicile at death, whether the later document was signed and witnessed correctly, whether an original will can be filed, and whether anyone contests the appointment or the will. The vehicle should generally wait until a personal representative has authority from the Probate Court to act for the estate.

Apply the Law

South Carolina does not require a will to be notarized to be valid. A will must be in writing, signed by the person making the will, and signed by at least two witnesses who saw the signing or heard the person acknowledge the signature or the will. A notary usually matters because it can make the will “self-proved,” which can reduce the need to track down witnesses if the will is challenged.

When there are two wills, the Probate Court looks first at whether the later will was validly executed. If it was, the later will can revoke the older will either by saying so directly or by being inconsistent with the older will. If the later will does not make a complete estate plan, the older will may still control any parts that the newer document did not change.

Key Requirements

Proper execution: The newer will must be written, signed by the decedent, and signed by at least two witnesses. A missing notary does not defeat the will by itself.
Revocation of the older will: The newer will must either expressly revoke the older will or conflict with it enough to show that the decedent meant to replace it, at least as to the conflicting terms.
Proper South Carolina forum: The estate usually opens in the Probate Court for the South Carolina county where the decedent was domiciled at death. If the decedent was not domiciled in South Carolina, venue may lie in a South Carolina county where estate property is located.
Original or proof of the will: Informal probate normally requires the original will. If only a copy is found, the case may require more proof and may become a formal probate matter.
Authority before sale: A vehicle titled in the decedent’s name should generally be sold only after the Probate Court appoints a personal representative and issues authority to act.

What the Statutes Say

S.C. Code Ann. § 62-2-502 (Will execution) – A South Carolina will must be in writing, signed by the testator, and signed by at least two witnesses.
S.C. Code Ann. § 62-2-503 (Self-proving wills) – A will can be made self-proved through acknowledgments and affidavits before an officer authorized to administer oaths.
S.C. Code Ann. § 62-3-406 (Proof in contested cases) – If a witnessed will is not notarized or self-proved, at least one attesting witness may need to testify if execution is contested and the witness is available in South Carolina.
S.C. Code Ann. § 62-2-506 (Revocation by later will) – A later will can revoke an earlier will expressly or by inconsistency.
S.C. Code Ann. § 62-3-201 (Probate venue) – The first probate proceeding belongs in the county of domicile, or for a nondomiciliary, a county where South Carolina property is located.
S.C. Code Ann. § 62-3-303 (Informal probate requirements) – Informal probate generally requires an original, duly executed, apparently unrevoked will in the court’s possession.
S.C. Code Ann. § 62-3-108 (Time limit for probate proceedings) – Most probate, testacy, and appointment proceedings may not begin more than ten years after death.
S.C. Code Ann. § 62-3-711 (Personal representative powers) – A personal representative has broad authority over estate property, but selling tangible personal property with an aggregate value of $10,000 or more may require a court order unless the will allows otherwise.

Analysis

Apply the Rule to the Facts: The later will is not invalid merely because it lacks a notary. If the later will was signed by the decedent and two witnesses, and if it revokes or conflicts with the older will, the spouse can ask the South Carolina Probate Court to admit the later will and appoint the spouse. If the later document lacks the required witnesses, or if only a copy is found and someone disputes it, the older notarized will may become the stronger filing position until the court decides the issue.

The unclear residency matters because South Carolina venue turns on domicile, not simply where the decedent stayed or received mail. A post office box may help show contacts with a place, but it does not alone prove domicile. If South Carolina was the decedent’s domicile, the estate usually starts in the Probate Court for that county; if not, a South Carolina proceeding may still be needed for property located in South Carolina.

For more background on probate authority, see this related article on filing as an executor in South Carolina when the original will is available. If only a copy turns up, this related article on probating a copy of a will in South Carolina explains why extra proof may be needed.

Process & Timing

Who files: The person seeking appointment, such as the spouse named in the later will or the relative named in the older will. Where: The South Carolina Probate Court in the county of the decedent’s domicile, or if the decedent was not domiciled in South Carolina, a county where South Carolina property is located. What: The original will if available, death certificate, Probate Court application such as Form 300ES for informal probate and appointment when appropriate, and any required renunciations, notices, or supporting affidavits. When: Probate and appointment proceedings should be started promptly, and generally no later than ten years after death.
The Probate Court reviews venue, the will, the applicant’s priority, and whether the filing qualifies for informal handling. If the newer will is not self-proved, the court may require witness testimony or an affidavit, especially if another interested person objects.
After appointment, the personal representative receives authority, often called letters. That authority allows the personal representative to gather property, deal with title issues, and handle estate assets, including a vehicle, subject to the will, court orders, and South Carolina limits on selling higher-value tangible personal property.

Exceptions & Pitfalls

Unnotarized is not the same as unwitnessed: A will without a notary can still be valid, but a will without two proper witnesses usually has a much bigger problem.
A self-proved will is easier to prove: A notarized self-proving affidavit can avoid the need for witness testimony unless someone raises a valid challenge. A later unnotarized will may still win, but it may take more proof.
The original matters: Informal probate usually requires the original will. If the family cannot locate it, the Probate Court may require a formal proceeding or additional evidence about why the original is missing.
Domicile can control the courthouse: Time spent in one place and mail received in another do not end the analysis. The court may look at the decedent’s actual home, intent, records, property location, and family connections.
Do not sell the vehicle too early: A family member named in a will does not have authority just because the will says so. The Probate Court must admit the will or appoint a personal representative before estate property can be handled safely.
Value can change the sale process: If the vehicle and other tangible personal property have an aggregate value of $10,000 or more, the personal representative may need a court order before sale unless the will authorizes the sale.
Two wills can create a contest: If the older will names one person and the later will names another, filing informally may not resolve the dispute. A formal probate petition may be the cleaner path when objections are likely.

Conclusion

In South Carolina, the newer will is usually the one to use if it was signed by the decedent and two witnesses and if it revokes or conflicts with the older will. The lack of notarization affects proof, not validity. The next step is to file the original will, if found, with the correct South Carolina Probate Court as soon as possible and before the ten-year outside deadline.

Talk to a Probate Attorney

If there are competing wills, unclear domicile, or an estate asset that needs to be sold, our firm has experienced attorneys who can help evaluate which South Carolina probate filing fits the situation and what proof the Probate Court will likely require.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.